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The Department of Justice has begun an investigation into Wisconsin's Department of Public Instruction, probing whether Milwaukee's state-administered voucher system is discriminating against students with disabilities. In response, the state is arguing that federal obligations don't apply to Wisconsin's voucher schools, according to a letter obtained by The Huffington Post Nov. 3.

Milwaukee's voucher system, which allows low-income students to attend private schools using tax dollars, came under fire in June for allegedly discriminating based on disability. The complaint ultimately led to the Department of Justice investigation.

Wisconsin's Department of Public Instruction responded to the DOJ Sept. 27 in a letter that has not yet been made public.

DPI argued that since voucher schools in Milwaukee are run on state funds, they are not subject to federal anti-discrimination laws such as the Americans With Disabilities Act's Title II, section 504 of the Rehabilitation Act and the Individuals with Disabilities Education Act. DPI is using this legal reasoning to explain why it doesn't have responsibility beyond state law for students with disabilities in schools that accept vouchers as part of the Milwaukee Parental Choice Program.

In regards to the anti-discrimination laws, "DPI has no policies or procedures that reference the obligation of participating MPCP schools to comply … because there is no such obligation," the DPI's letter stated.

The DOJ investigation began in response to a complaint filed in June by the ACLU of Wisconsin Foundation and Disability Rights Wisconsin against DPI.

The complaint alleged that the voucher system segregates students with disabilities from Milwaukee's voucher system, keeping them in public schools. The real numbers of students with disabilities in Milwaukee Public Schools has declined over the years, but its proportion within MPS has increased while private, voucher schools absorbed 23,000 primarily non-disabled students.

The June complaint also recounted stories of several students who say they had been turned away from voucher schools based on their disabilities. For example, an ADHD-diagnosed student was told by a school that it wouldn’t admit him if he did not take medication for the disorder even though his mother had decided he did not need medication.

The outcome of the Wisconsin case could have broader implications as states seek to expand their voucher programs.

Pennsylvania's state senate recently passed a bill that would create the state's first voucher program. Ohio also recently passed a law that creates a special-needs-only voucher system. And Indiana, which last year created the country's largest statewide voucher program, touted its "most expansive first year voucher program" in a press release Thursday.

"Hoosier parents are more empowered than ever before in our state," Indiana schools chief Tony Bennett said in a statement.

In Wisconsin, Milwaukee's voucher program expanded into Racine Unified School District this year, doubling the size of the state's program for the 2012-2013 school year.

On Aug. 17, the DOJ began its investigation in Wisconsin, following up on the June complaint by submitting a questionnaire to DPI. The DOJ's letter inquired about the state's practices and responsibilities toward special-education students in voucher schools.

The state's Department of Public Instruction and superintendent Tony Evers claim that vouchers in Milwaukee are funded with state, and not federal, funds. Parents of voucher-eligible students, determined based on their income bracket, choose where to enroll their child. The department then makes four payments to the parents that can only be cashed to the child's school.

But, like other private schools in Wisconsin, voucher schools do receive some federal funding, such as through the National School Lunch Program. Private voucher schools also receive some funds from the federal government through the Elementary and Secondary Education Act.

Jeff Spitzer-Resnick, who heads Disability Rights Wisconsin, said he was surprised by

DPI's September letter pushing back against the DOJ investigation, since DPI has previously acknowledged flaws in the way its voucher schools handle students with disabilities.

"We had been under the impression that DPI was concerned about the fact that the Milwaukee voucher program was not serving children with disabilities," Spitzer-Resnick said in an interview Thursday. "They were actively putting out the data and expressing concern publicly. To see a legal statement saying they don't believe the ADA and 504 applies is really surprising. We think it's legally incorrect."

In its letter, DPI attached a federal Education Department Office of Civil Rights letter from 1990 and a State Supreme Court decision saying that voucher schools were not public schools. But Spitzer-Resnick said that these documents mean little, as the program has changed drastically since then.

"These voucher schools receive federal school lunch money at the very least," Spitzer-Resnick said. DPI's own letter referenced Title I federal money some voucher students receive under ESEA.

DPI is declining to comment further for now.

"US DOJ has not completed their inquiry, nor issued an opinion/decision yet, and as it is an open inquiry, we will refrain from commenting further about it," DPI spokesperson Patrick Gasper said in an email to HuffPost Thursday.

DPI noted that it does not collect extensive data on the expulsion, retention and transfer of students with disabilities. DPI similarly could not answer a question concerning the proportion of students with disabilities enrolled in the individual voucher schools.

But based on a statewide exam administered to voucher schools for the first time last year, DPI attached a spreadsheet showing the aggregate amount of self-identified students with disabilities who took the exams to be 174 out of 10,649 total students.

The tangible difference between voucher schools' accountability in serving students with disabilities under state or federal law is huge, Spitzer-Resnick said, and the right to equal opportunity education among all students is at stake.

"When you have a system in Milwaukee that shows huge disparities, you have to start with monitoring," he said. "There's no system in place to determine if special ed kids are attending voucher schools. If they are, are they [later] rejected? There's no system for telling parents if you're rejected, here's what you should do."

About Me

I am full-time Mass Communication faculty at Towson University in Maryland and adjunct faculty in the City University of New York (CUNY) Master's in Disability Studies program.
I research media and disability issues and wrote a 2010 book on the subject: Representing Disability in an Ableist World: Essays on Mass Media, published by Advocado Press.
The media have real power to define what the public knows about disability and that's what I research.